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There are obvious facts which do much to explain the changed popular feeling toward the courts. It is coming to be generally understood that the state courts are not performing their functions with a high degree of efficiency. Our attention in the past has been so constantly directed toward executive and legislative inefficiency in the states that we have only just come to realize that the courts also have been inefficient. Judges seek to shift to the lawyers practicing before them the blame for this condition of affairs, but it is plain that both bench and bar are responsible. And for a large part of the technicality in our civil and criminal procedure the courts are directly and primarily responsible. Judges bemoan the fact that they occupy the position of mere umpires in the legal battles that are fought out before them, but their position. is due largely to their failure to assert the authority which they possess. Furthermore, the conduct of business by receivers I acting under direct control of the courts has not been above reproach, and here the judges have full authority. But the most important factor in producing popular discontent with the courts is the judicial attitude upon social and industrial questions. As President Hadley has well pointed out,' our constitutional guaranties have largely been developed and applied by the courts for the protection of property rights. Under the social and industrial conditions that prevailed before the Civil War this development was, at least to some extent, justifiable, for property was then practically within the reach of all and its protection was clearly a matter of general interest. As the courts say, there is no property apart from ownership or interest in property by individuals, and the protection of property rights is a protection not of property as such but of individual rights to property. Where the acquisition of property is measurably within the reach of all there can be no conflict between property rights and individual rights. But since the Civil War there has been developing in this country a larger and larger class to whom the acquisition of even a small amount of property is less and less possible. And at the same time there have appeared large accumulations of property in the hands of a small number of persons. Thus has arisen a conflict between property rights and individual rights. More accurately, perhaps, the conflict may be described as one between the claims of those owning or controlling large masses of property and the claims of those having little or no property. The claims of those having large accumulations of property are based upon the plea of the sacredness of property; and this plea finds recognition in our earlier constitutional principles. The claims of those having little or no property are based on the plea that the individual, even though without property, is of more moment than property; and this plea is supported by the humanitarian philosophy of the present day. These positions in the long run should not prove irreconcilable, but certain it is that the interests of owners of large property as such must give way to the broader 1 "Constitutional Position of Property in America," The Independent, April 16, 1908. |